38 Ala. 345 | Ala. | 1862
(After stating the facts as above copied.) The questions to be tried in the court below, were — 1st, who had the best right of possession of the slip of six or seven feet north of the old fence ; ancfi 2d, who had the best right of possession of the remainder of the land sued for. We shall not attempt to answer these questions, but will confine ourselves .to an examination of the several charges given and refused. ToUhe first and fifth charges given, no objection has been made iil the arguments submitted on behalf of thaappellant.
While it may be admitted, that the judgment in the Chastang suit, followed by -the ’required payment by
But we need not rest our decision on this single ground. The evidence is all set out; and the charge we are considering,, as well as-all .the others, must be construed in connection with the evidence. The evidence tended to show that, when .the Chastang suit was begun, Knox was in .possession, as,, the. tenant of Eslava, of the whole of lot number four, and all that part of lot number three, which lies south of the old place; that pending the suit, Eslava transferred his -possession to Stewart & Easton; that, by his consent, and direction, Knox attorned to Stewart & Easton, who made themselves defendants to the action as landlords of .Knox; and that matters stood thus when the judgment in the ejectmeut suit was rendered. The evidence that Knox, being already in possession, attorned to them, and became their tenant, is the only evidence that was offered, tending to show that Stewart & Easton were, at the time, of the recovery, in possession of the land claimed by them. Unless, therefore, Knox was their tenant, they were not in possession at all, and they were only in possession to the extent to which he was their tenant. In effect, then, the charge was that, if, at the time of the recovery, Knox was in possession as the tenant
As we have seen, the record of the Chastang suit shows that Knox was served with the declaration and notice, and tfrfit Stewart ■& Easton made themselves defendants to the action. Now;-if in addition, it was proved that, pending the suit, Knox became the tenant of Stewart & Easton, and so remained until the recovery, it cannot be doubted, we think, that be is bound by the judgment, so far as it relates to the land of which he was in possession as the tenant -of Stewart & Easton, and is thereby estopped from denying that, as to that land, the recovery and payment did effect a -divestiture of the title of the Chastang heirs, and the transfer to Stewart & Easton of -such an interest-as-would support an ejectment. — See 2 Phill. Ev. (C. & H’s Notes, Edward’s ed. 1859,) p. 15, note 260 ; ib. p. 19, note 261; Jackson v. Stone, 13 Johns. 447; Shumake v. Nelms, 25 Ala. 126 (135); Howard v. Kennedy, 4 Ala. 592.
As no part of the lot to which the third charge relates was in controversy here, the defendant could not have been inj tired by it.
It is very properly conceded by the counsel for the appellee, that the plaintiff has no right to recover any part of the Johnson lot, allowing to the same a front of thirty, and a depth of one hundred and fifteen feet. It appears, however, that the verdict and judgment embrace a part of this lot; for the recovery is for all the land west of one hundred feet from St. Emanuel street; in other words, the recovery includes fifteen feet from the west side of the Johnson lot, to which the plaintiff has no claim. But this matter is not involved in any of the exceptions brought before us; and as the plaintiff expresses a willingness to enter a remittitur as to this part of the recovery whenever called upon, it is not likely that the mistake will inj ure the defendant.
Judgment affirmed.